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Nullification: How to Resist Federal Tyranny in the 21st Century
by Thomas E. Woods Jr. (Regnery, 2010); 309 pages.

One of the big mistakes made by the drafters of the Constitution was their omission of any provision that says what is to be done if the Congress or president acts unconstitutionally. Although the Constitution places limits on their authority, nowhere does it specify the course or courses of action open to citizens or states who want to block the offending action. That omission has plagued the nation almost since its beginning.

Americans are used to one course of action available to challenge the legitimacy of government action, namely review by the judiciary. There is no language in the Constitution stating that courts have the power to declare laws unconstitutional and therefore unenforceable, much less that judicial review is the remedy.

Why shouldn’t state governments have at least as much authority to overturn unconstitutional acts as the courts? The states, after all, came together to form the compact called The United States of America. Moreover, state governments are more accountable to the people than are judges serving lifetime appointments on appellate courts. (Government accountability is a weak reed, but at least it is possible to vote out governors and state legislators.)

Does it make any sense to have one branch of the federal government be the sole judge of the legality of acts of the other branches of the federal government?

When Congress passes a statute that violates the Constitution or the president issues an executive order that does, shouldn’t there be some way to nullify it other than the undependable method of review by the federal courts?

In his latest book, historian Thomas E. Woods Jr. argues persuasively that it makes no sense for the federal courts to have the final say on the constitutionality of federal action and that there is an alternative, namely nullification by state governments. In fact, he demonstrates that individuals as closely tied to the American Revolution as Thomas Jefferson and James Madison believed that the states had the right and indeed the duty to interpose when the federal government exceeds it authority.

To a shocking degree, the federal system that the Founders envisioned to protect individual rights and restrict government’s well-known proclivity for expansion has already been abandoned. Politicians and constitutional “experts” generally proclaim that under the Constitution, the government has the power to do almost anything. For example, when asked where the Constitution says that Congress may compel people to purchase health insurance, House Speaker Nancy Pelosi spluttered, “That is not a serious question!”

The tremendous momentum of government expansion, if unchecked, will leave Americans in a condition of involuntary servitude to the state, their liberties greatly constricted, and most of their income confiscated to pay the debts that their “representatives” have rung up. That is why the topic of nullification is so timely and essential. If Americans can’t find a way of stopping the runaway train of government, they are going to be in a stupendous wreck.

Calls for nullification

But could nullification help apply the brakes? Woods begins by showing readers that there are good historical precedents for it. The United States was barely a decade old when the first (and still shocking) case of clear federal overreach occurred, with the passage of the Alien and Sedition Acts in 1798. Both trampled on the Constitution, but the idea that the government could criminalize criticism of its policies was particularly appalling to many Americans. They could criticize the king of England during the colonial era without getting tossed into prison, after all! The ink was barely dry on the First Amendment’s prohibition of laws to abridge freedom of speech, yet people were being put on trial for speaking out against the government.

Jefferson and Madison each thought the Sedition Act unconstitutional and argued that state governments should act to prevent their citizens from being punished under the law. Jefferson drafted a resolution for Kentucky and Madison drafted one for Virginia, proclaiming (in the words of the Kentucky Resolution), “That the several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.”

For an extended treatment of the state opposition to the Alien and Sedition Acts, see Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy by William Watkins Jr., which I reviewed in the September 2005 Freedom Daily (www.fff.org/freedom/fd0509g.asp).

The nullification resolutions did not, it must be admitted, meet with universal approval. A number of states enacted their own resolutions in effect saying, “The Alien and Sedition Acts are fine with us and we won’t have any part of this nullification stuff.” Those counter-resolutions, however, did not endeavor to prove Kentucky and Virginia wrong, that is, to demonstrate that nullification was illegitimate under the Constitution.

With the defeat of the Federalists in 1800, the Alien and Seditions Acts became dead issues, since the Jeffersonians had no interest in prosecuting anyone under them. Therefore, the nullification issue faded away. Just a few years into the new century, however, it arose again, this time as a result of Jefferson’s own abuse of power — his embargo of 1807 that prevented American merchant ships from sailing to any foreign port. That bit of folly was ruinous to American shippers, especially in New England. Connecticut’s governor, Jonathan Trumbull, responded to Jefferson’s embargo this way:

Whenever our national legislature is led to overleap the prescribed bounds of their constitutional power, on the State Legislature, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.

Similarly, Woods relates, the Massachusetts legislature passed a resolution condemning the embargo, stating that it was unjust, oppressive, unconstitutional, and “not legally binding on the citizens of this state.” Moreover, the resolution continued, “It would be derogatory of the honour of the commonwealth to presume that it is unable to protect its subjects against all violations of their rights, by peaceable and legal remedies.”

During the War of 1812, federal politicians proposed legislation to begin a military draft. That idea was hotly opposed by many Americans on constitutional grounds. Although no conscription bill was passed, the Connecticut legislature resolved that if such a bill were enacted, “it will become the imperious duty of the Legislature of this State to exert themselves to ward off a blow so fatal to the liberties of a free people.”

In short, many Americans of that era thought that it was entirely proper for state governments to prevent enforcement of unconstitutional federal acts against individuals. Nullification thus has an excellent pedigree.

Actual nullification

Perhaps the most wonderful example of nullification — action, not just words — occurred in Wisconsin over enforcement of the federal Fugitive Slave Act, a law that criminalized conduct to assist escaped slaves. Many Americans regarded the law as an unconstitutional, immoral abomination. An escaped slave, Joshua Glover, was arrested in Milwaukee in 1854 by a federal marshal. Glover’s arrest catalyzed Sherman Booth, an anti-slavery newspaper editor, into action.

Booth rode through the streets, shouting “A man’s liberty is at stake!” A mob of pro-freedom Milwaukeeans soon assembled, broke into the jail, and freed Glover. For his efforts, Booth was arrested by the same federal marshal and charged with violation of the Fugitive Slave Act. I’ll let Woods tell the rest of the story:

Booth was arrested and brought before a federal district court. When he applied for a writ of habeas corpus, a judge of the Wisconsin State Supreme Court ordered him released. The state supreme court declared the Fugitive Slave Act to be unconstitutional and therefore void. Before long, Booth was arrested again, by the same federal marshal. This time he was found guilty of violating the Fugitive Slave Act, and imprisoned and fined. But once again he was released on order of the state supreme court…. Finally, in December 1858, the U.S. Supreme Court ordered Booth turned over to federal custody. The state supreme court refused to comply.

The following year, the Wisconsin legislature adopted a resolution perfectly in keeping with the spirit of the Kentucky Resolution of 1798. The crucial part of that resolution reads, “The several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.”

Backbone! No talk about trying to vote out the politicians who had supported the Fugitive Slave Act and repealing it. No talk of going to court to challenge its constitutionality. They just did it — civil disobedience by a whole state. What a great lesson.

The really savory thing about that story is how it annihilates the feeble, intellectually dishonest argument that is often raised against those who advocate nullification today — that they’re somehow on a par with racist slavery defenders. Woods himself and others who dare to suggest that it’s time for the states to oppose unconstitutional federal statutes are frequently hit with the line, “the Civil War settled that!” No, it’s irrelevant, both as to the legality and the practicality of nullification.

But wouldn’t the country disintegrate into chaos if states could nullify federal laws? Actually, that is just what’s been going on with regard to the federal REAL ID act of 2005. Two dozen states, Woods reports, have simply refused to go along with that new unconstitutional mandate. “Resistance was so widespread,” he writes, “that although the law is still on the books, the federal government has, in effect, given up trying to enforce it.” The country hasn’t disintegrated into chaos because some meddlesome, authoritarian federal law isn’t being enforced.

The American political establishment says that the correct way for people to react if they think Congress or the president has acted unconstitutionally is: (a) wait for the next election and vote for an opponent of the politicians responsible in the hope that if enough opponents win, they will repeal the law, or (b) wait until someone is subjected to legal sanctions for violating the law, then argue in court that the law is unconstitutional.

The big point of Woods’s book is that those nice, politically correct responses do not work. The Supreme Court very rarely throws out any law, no matter how odious, because it violates the Constitution. And Congress never goes back to repeal one of its pieces of unconstitutional handiwork just because some incumbents who voted for it were defeated. The “respectable” rules ordained by the political establishment stack the deck in favor of continuous expansion of federal power to take liberty, property, and even our lives. Therefore, it’s time to play by different rules, Woods argues. It’s time to refuse to cooperate with politicians who exceed their authority.

Nullification should have the same impact on Americans of 2010 as did Sherman Booth’s dramatic efforts in 1854. It should rouse them to action to save liberty.

This article originally appeared in the November 2010 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

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George C. Leef is the research director of the John W. Pope Center for Higher Education Policy in Raleigh, North Carolina. He was previously the president of Patrick Henry Associates, East Lansing, Michigan, an adjunct professor of law and economics, Northwood University, and a scholar with the Mackinac Center for Public Policy.

Reading List

Prepared by Richard M. Ebeling

Austrian economics is a distinctive approach to the discipline of economics that analyzes market forces without ever losing sight of the logic of individual human action. Two of the major Austrian economists in the 20th century have been Friedrich A. Hayek, who won the Nobel Prize in Economics, and Ludwig von Mises. Posted below is an Austrian Economics reading list prepared by Richard M. Ebeling, economics professor at Northwood University in Midland and former president of the Foundation for Economic Education and vice president of academic affairs at FFF.